40 Misc. 2d 384 | New York County Courts | 1963
These are motions for the confirmation of the final report of the Commissioners of Estimate and for the taxation of costs in the above-captioned proceeding. The County Attorney opposes the first of these two motions.
The claimant in this proceeding, Samuel W. H. Nexsen, purportedly obtained title to the premises in question through the deed of one James T. Heenahan, as trustee in bankruptcy of the Lido Realty Corporation. The County Attorney takes the position that the claimant did not obtain title to the sewer network since the trustee’s quitclaim deed is silent respecting the transfer of any personal-property. Therefore, the underlying question to be determined is whether the sewer system is realty or personalty. If it is construed to be realty then, of course, the deed conveyed title to the sewer system. (Real Property Law, § 2.)
The deed purports to “ remise, release and quitclaim to the claimant, his successors, and assigns forever. All those certain
There appears to be no challenge in this proceeding relative to Lido Realty Corporation’s title to the sewer system. Accordingly, the court assumes that the Lido Realty Corporation possessed title to the sewer system prior to conveyance to the claimant.
In deciding whether the sewer system is real property or personal property the court must apply those principles of law which will enable it to determine the nature and classification of the sewer network. It is a well-established principle of law that when chattels are affixed or annexed to real property they generally become part of the realty and are construed to be permanent fixtures. This court recognizes, of course, that there are many exceptions to the general rule, but when confronted with a situation such as the one before this court, the exceptions have no application. The next question to be determined is whether the sewer network is a fixture annexed to the realty so as to become a part thereof.
Generally, fixtures are articles which were personalty but which by being annexed to realty are regarded as a part thereof. (36A O. J. S., Fixtures, § 1, p. 587 [1961].) Ordinarily for an article to become a fixture the following requisites must be met: Firstly, there must be annexation to the realty. Secondly, there must be adaptability of the article affixed to the use of the freehold. Thirdly, the intention of the party creating the annexation is to make the article a permanent accession to the freehold. (Porter v. Cromwell, 40 N. Y. 287, 296-297; Marine Midland Trust Co. of Binghamton v. Ahern, 16 N. Y. S. 2d 656 [Supreme Ct., Broome County]; Teaff v. Hewitt, 1 Ohio St. 511.)
In the instant case, the sewer pipes were imbedded within the streets. The only means of access to the pipes were manholes in those streets. Thus, the sewer pipes were annexed to the realty. According to the evidence adduced at the hearing, and the Commissioners’ findings, the sewer network was in
It is a general maxim of the law that whatever is fixed to the realty becomes part of it, and partakes of all its incidents and properties. (Benenson v. Ritzmann, 203 Misc. 768.) The Court of Appeals in Mott v. Palmer (1 N. Y. 564, 569 [1848]) said: “ The word land, when used in a deed, includes not only the naked earth, but every thing within it, and the buildings, trees, fixtures and fences upon it. [Cases cited]. A deed passes all the incidents to the land as well as the land itself, and as well when they are not expressed as when they are.” Fixtures, such as a sewer system, like buildings and fences are corporeal in their nature and the subjects of seisin, like the land itself, of which they are regarded in the law as part. A sewer network, such as the one involved herein, is not only indispensable to the enjoyment of real estate, but it is in its nature real estate to the same extent that houses and other structures on the land are so. A loose timber, before it is used in the construction of a house, is personal property, and so are a sewer pipe and pump before they are used in the construction of a sewer system. When either is applied to their appropriate use in a house or a sewer network, their legal nature and classification is changed. It becomes real property and is governed by the law which
There being no claim that the awards made by the Commissioners were excessive or based on erroneous principles of law, the motion to confirm the report of the Commissioners of Estimate is granted. Furthermore, there being no opposition to the motion for the taxation of costs in the instant proceedings, that motion is granted. Submit order.